Capital Punishment? Castration? Tempting But Flawed Answers

Members of Bhartiya Janta Party protested against the rape of a 23-year-old student in New Delhi, Dec. 19.

On Tuesday, my Economics Journal column focused on the recent horrific case of a woman being allegedly raped on a moving bus in Delhi which has been much in the news this week.

The thrust of the piece was to consider the failure to protect women, and indeed other failures of law and order, as examples of the larger failure of the state in India to provide basic goods and services to its citizens, and the corresponding failure of India’s elites to claim ownership of those public goods and services.

Advertisement

There’s been much commentary and soul searching on what went wrong to allow such a horrific tragedy to occur and what some proposed solutions might be.

One predictable theme of the commentary points to Indian culture, especially that of Delhi and North India, as the culprit. There may be some truth to the claim that the culture of the region is steeped in centuries of patriarchy and misogyny which create a mindset that makes rape or other forms of sexual harassment acceptable to some individuals. I myself experienced harassment in Delhi’s posh Lodi Gardens, the year I lived there a few years back for the “offense” of jogging in Bermuda shorts. I was asked in Hindi by an apparently cultured older gentleman: “Do you have no shame?”

But we need to be careful in appealing to purely cultural explanations. While culture may help us explain the mindset of would-be sexual predators, an excessive focus on culture distracts attention from the fact that the proximate explanation for the continuing prevalence of such crimes throughout India, is the abysmal track record in arresting and prosecuting assailants.

Even less helpful in understanding the problems that women face in India is to trot out surveys which purport to find how dangerous a country India is for women, compared to elsewhere. As I and my co-author point out in our recently published book “Indianomix: Making Sense of Modern India,” such survey results tend not to be based on hard data compiled by the Indian government or anyone else for that matter but represent an aggregation of expert opinion.

That would be about as meaningful as asking a panel of experts to make a guess at the level of gross domestic product or the rate of inflation rather than looking at the data themselves.

As I noted Tuesday, Delhi may have the largest total number of rapes in India, but that reflects its large population. In per capita terms, it’s better than several smaller cities but does fare worse than the other major metros, a fact which may lend some credence to the cultural explanation.

A second major theme in much of the commentary is that the punishment for rape must be made harsher. For instance, Sushma Swaraj, Leader of the Opposition in the Lok Sabha, called for the death penalty in this particular case. Ms. Swaraj, a distinguished lawyer, is surely aware that rape is not a capital crime under the Indian Penal Code. So presumably her call is meant to create a national debate in amending the penal code in this direction. Similar sentiments were widely expressed in social media. At least one well-known personality advocated public stoning for convicted rapists and several other commentators have called for the “chemical castration“ of convicted rapists.

Let’s look seriously at the issues. The moral issues involved in fighting barbarism with even more barbarism are complicated enough. With the exception of the U.S., capital punishment has been abolished in every Western country as being unacceptably cruel. Likewise, a leading civil-rights advocacy group in the U.S., the American Civil Liberties Union, has declared chemical castration as “cruel and unusual” punishment. As it happens, the economics behind such extreme punishments are equally unsettled.

The basic conceptual problem with studies that purport to show that capital punishment has a strong deterrent effect is one that we identify in our book in the broader context of assessing public policies. That problem is what economists call the “counterfactual”: in other words, what are you comparing capital punishment to?

Obviously, if you compare it to a hypothetical world in which there’s no punishment for crime, capital punishment will come out looking pretty good in terms of its deterrent effect. But, what you should be comparing it to is a realistic alternative scenario such as life in prison without the possibly of parole. What also complicates economic studies of the effects of capital punishment is that they require the researcher to make an assumption on whether would-be criminals would be deterred by the possibly that if they are caught, they would face the death penalty.

Given these difficulties, it’s not surprising that studies of capital punishment using U.S. data — which, for better or worse has the best available dataset and scholarship on this subject — return mixed findings. A classic early study from 1973 by Isaac Ehrlich, then at the University of Chicago, found a measurable deterrent effect in capital punishment. Subsequent research challenged Mr. Ehrlich’s findings and some even found the apparently perverse result that capital punishment could result in an increase in crimes, especially homicides. The reasoning would be that, if you know you’re going to be put to death if caught and convicted, you’ve got nothing to lose and are more likely to kill rather than leave an injured victim who might then testify against you. As ever, it’s the counterfactual that’s crucial.

More recently, John Donohue of Stanford Law School and Justin Wolfers of the University of Michigan published a study exhaustively analyzing existing research and found it impossible to conclude with any certainty that capital punishment is a deterrent. While no comparable study exists for India, common sense would suggest a similar conclusion. After all, the U.S. has provided the perfect laboratory for scholars studying the possible deterrent effects of the death penalty given that it exists in some states and not in others and there are many decades of data to draw on.

In the ultimate analysis, the problem of violence against women in India isn’t likely to be solved by extreme measures such as capital punishment or chemical castration. These might bring emotional satisfaction to victims and their families — although I have my doubts on this score — but there’s little evidence that they’ll deter future crime. The truth is, there’s no quick fix.

Moral outrage after a tragedy such as this recent one in Delhi has a notoriously short life and rarely leads to better public policy. The real solution will involve better policing, better administration of the existing legal justice system and, crucially, citizens demanding an improvement in the delivery of this vital public good and holding their elected officials accountable for failing to deliver it. In the end, it is up to us.

Rupa Subramanya writes Economics Journal and is co-author of “Indianomix: Making Sense of Modern India,” published by Random House India. You can follow her on Twitter @RupaSubramanya.

About India Real Time

India Real Time offers analysis and insights into the broad range of developments in business, markets, the economy, politics, culture, sports, and entertainment that take place every single day in the world’s largest democracy. Regular posts from Wall Street Journal and Dow Jones Newswires reporters around the country provide a unique take on the main stories in the news, shed light on what else mattered and why, and give global readers a snapshot of what Indians have been talking about all week. You can contact the editors at indiarealtime(at)wsj(dot)com.